What Constitutes Direct Evidence of Discrimination?

Many discrimination cases involve indirect evidence of discrimination, but a plaintiff may also prove a discrimination case with direct evidence of discriminatory comments. These discrimination cases turn on whether the comments constitute evidence of discrimination or are simply “stray remarks.” A stray remark is an inappropriate comment that is made in the workplace but one that is not typically actionable in a lawsuit. Stray remarks may be comments that are unrelated to the employment action in question or comments made by non-decision-makers (often, coworkers).

To determine whether particular comments constitute direct evidence of discrimination or are simply stray remarks, a court must determine whether the comments are:

1. Related to the plaintiff’s protected characteristic;

2. Proximate in time to the challenged employment decision (or made over a lengthy period of time);

3. Made by an individual with authority over the challenged employment decision; and

4. Related to the challenged employment decision.

The ultimate focus in applying this test is on whether the comments prove, without inference or presumption, that an employee’s protected characteristic was a basis in the employment decision.

This article is presented by the Dallas employment attorneys at Clouse Dunn LLP. To speak to an employment lawyer, send an email to [email protected] or call (214) 239-2705.